A BORKEAN REVIVAL MICHAEL C. DEBENEDETTO III INTRODUCTION come under increasing resistance in the modern era. Living constitutionalism presents the United States Constitution as having a malleable nature other than what has been provided in the Article V amendment process. It draws jurists towards legislative activity and politicization from the bench. In contrast, originalism looks to the authors of our government the framers for guidance when weighing the Constitution and the demands of society in interpreting law. The Tempting of America. 1 arguments outlined in the book that detail the dangers of venturing outside the parameters of the Constitution when interpreting law. In particular, it focuses on substantive due process and the privacy right. Dred Scott v. Sandford, 2 Griswold v. Connecticut, 3 and Roe v. Wade 4 as major decisions that have politicized law through the generations. Part II by theorists to reach their conclusions on constitutional law. He explained the strength of applying original understanding and how the methods embraced by Bruce Ackerman, among others, deviate from this premise. Finally, Part III concludes with through his personal experience during his United States Supreme Court hearings. hanks to Dean Marc O. DeGirolami for his guidance and advice throughout the process. 1 ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1991). 2 60 U.S. 393 (1856). 3 381 U.S. 479 (1965). 4 410 U.S. 113 (1973). 1
2 ST. JOHN S LAW REVIEW COMMENTARY I. THE TEMPTATION OF POLITICS Bork found the potential for politicization of law arises when subjective interpretations distort established constitutional principles. Prime examples include the birth of Substantive Due Process through Dred Scott and the advent of the privacy right in Griswold that helped lead to Roe. A. Substantive Due Process In Dred Scott, Chief Justice Roger B. Taney categorized the African-American slaves as property by using the Fifth Amendment due process clause of the United States Constitution. 5 with the rights of person, and placed on the same ground by the Fifth Amendment to the Constitution, which provides that no person should be deprived of life, liberty, and property without 6 The chief concern of Bork was the transformative character Taney used to reformulate the due process provision. Bork dismissed the abstraction by the Court to cast it as a substancebound provision. Rather that the substance of law be applied to a person through fair 7 The intent of the due process clause was bound in a procedural context. Taney defined property as encompassing a person, with no textual anchor in the Constitution and lacking any support from that the right of property in slaves was guaranteed by the 8 Tempting was challenged by Suzanna Sherry who claims in Original Sin: Dred Scott as the grandfather of illegitimate non-originalism. In fact even a cursory examination of his opinion shows that Taney based it mainly on his careful (and arguably correct) examination of the original intent of the framers. 9 5 U.S. CONST. amend. V. 6 Dred Scott, 60 U.S. at 450. 7 BORK, supra note 1, at 31. 8 at 30. 9 Suzanna Sherry, Original Sin, 84 NW U.L. REV. 1215, 1224 25 (1990).
2016] A BORKEAN REVIVAL 3 direct challenge on the grounds of his own chosen method of interpretation originalism. Although Sherry is not specific in invoking what form of original intent that was implored, one could infer she may be referencing clauses such as the 3/5 Clause 10 or Fugitive Slave Clause 11 that are present in the Constitution. At first glance, this argument may seem compelling because both of the provisions are clearly dealing with the practice of slavery and are embedded within the Constitution. However, this theory is not immune to flaws. By inclusion of these provisions in the Constitution, the framers recognized slavery as a practice worthy of some form of protection, but these provisions do not explicitly strip the slaves of personhood; rather, both provisions continuously use the word In Dred Scott, Taney completely stripped this label with his designation of them as property, and he relied on a procedural provision to do it the Fifth Amendment due process clause. With the syntax provided in both of these clauses, it may be too much of an extension to find that the framers only thought of the slaves as property with no human essence rather than persons under enslavement. Furthermore, the framers had the future of the nation in mind with the amendment process and recognized that as society progressed, change would undoubtedly come to fruition in many aspects of the American society. Trying to reconcile Dred Scott with the original intent of the Constitution and adding a substantive nature to the due process clause in equating persons to property troubled Bork. B. Privacy Right Bork discussed Griswold and found that the privacy right invented in that case settled into much of the politically charged controversial cases of the modern era. The Court in Griswold ruled that a right to privacy existed based on the grounds of 12 or shadows that circled the Bill of Rights, and in this particular case, the Fifth Amendment. 13 The right to privacy was invoked because of the Connecticut law that prohibited the 10 U.S. CONST. art. I, 2. 11 U.S. CONST. art. IV, 2, cl. 4. 12 Griswold v. Connecticut, 381 U.S. 479, 484 (1965). 13 U.S. CONST. amend. V.
4 ST. JOHN S LAW REVIEW COMMENTARY use of contraceptives between married couples. 14 The Court there found that there is a certain degree of privacy that exists within the confinement of a marital relationship, specifically contraceptive decisions. 15 In the decision, Justice Douglas cited to Pierce v. Society of the Sisters 16 and Meyer v. Nebraska 17 to support the penumbra premise. 18 Bork appropriately titles his criticism of Griswold Right of Privacy: The Construction of a Constitutional Time Bo 19 This was a prime example of judicial activism and usurpation of power from the democratic processes of the state. Bork acknowledged that courts legitimately have authority to rights specifically noted in the Constitution, but here the Court went too far in asserting the privacy interest when none was specifically provided in the text. 20 Bork found: Zones of Privacy created by each separate provision of the Bill of Rights somehow created a General but wholly undefined right of privacy that is independent of and lies outside any right or zone of privacy to be found in the Constitution. 21 Bork believed there was merit to the fact that the framers intentionally did not define a privacy right in the Bill of Rights. Arguably, this power would seemingly be without boundary because of its general context. This broad right to privacy seemingly has no boundaries as Bork pointed out and could be used for an abundance of possibilities, even suggesting a privacy freedom to not follow any law. 22 14 Griswold, 381 U.S. at 480. 15 at 485 86. 16 268 U.S. 510. 17 262 U.S. 390. 18 Griswold, 381 U.S. 479, 482 ( Pierce v. Society of Sisters... the right to educate on the First and Fourteenth Amendments. By Meyer v. State of Nebraska... the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, ). 19 BORK, supra note 1, at 95. 20 at 97 98. 21 at 98. 22
2016] A BORKEAN REVIVAL 5 the legal ramifications of Griswold in Meeting the Enemy. 23 Nagel said: It just seems fanciful to regard judicial creation of the right to privacy as a threat to our form of government.... The public, after all, has had experience with the right to contraceptives for considerable time now and senses in that experience no real danger. 24 main argument throughout the work is that reaching policydriven outcomes rather than constitutionally-driven outcomes result in creating dangerous precedent upon which to interpret law. Nagel points out that because of the embedded tradition within society and prevalence of contraceptives, it is merely a formality to recognize the privacy right found in Griswold and there is no challenge to our governmental foundations by creating it. 25 However, this argument is one that lacks foresight into the impact of manufactured rights under the guise of law. As proven by the facts of history, the privacy right introduced in Griswold was central reasoning in other modern day cases that have also had their fair share of controversy because of deviation from text. Some of these cases include Roe and Obergefell v. Hodges. 26 If the central problem posing the people of Connecticut was the contraceptive rule that was apparently not being enforced, 27 would it not have been more appropriate for the legislature to handle the question of repeal? The trouble posed is that for this issue to be resolved it needed the United States Supreme Court to create the new privacy right. not just end with the societal contraception demands; instead, it led to far reaching consequences and detrimentally altered the constitutional history of our nation. Bork would accept changes to the law of a given state to modernize, but he would insist that it must be done through the consent of the governed. The reasoning found in Griswold to create a privacy interest was one of the essential components of 23 Robert Nagel, Meeting the Enemy, 57 U. CHI. L. REV. 633, 646 (1990). 24 25 26 135 S. Ct. 2584 (2015). 27 BORK, supra note 1, at 96.
6 ST. JOHN S LAW REVIEW COMMENTARY the Roe decision that legalized abortion, thus overturning the statutes of states that had placed severe restrictions on or banned the practice outright. Roe is a decision that is high on policy outcome and politicization over actual text of law. The reasoning relied upon in Roe to grant the right to abortion does not have a solid premise within the confines of the Constitution. A central argument in the majority opinion, authored by Justice Blackmun, returned to substantive due process, but in the context of the Fourteenth Amendment: This right of privacy... concept of personal liberty and restrictions upon state action... whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this altogether is apparent. 28 There, Blackmun was hinting that the un-enumerated right of privacy fits under the procedural right of liberty as stated in the Fourteenth Amendment. 29 30 Roe opinion does not once say what principle defined the new right so that we might know both why it covers liberty to abort and what 31 analysis in Original Sin: Roe If Bork had his way and Roe were overruled, women in many states, as Senator Kennedy c forced into back Roe as he claims, merely based on constitutional theory: he reveals his underlying moral opposition to abort and by repeatedly the pro-choice position as pro-abortion. 32 In the book, Bork presented himself as a strong critic of judicial imposed morality and took considerable time explaining why this line of philosophy does not have a place in Constitutional interpretation. Bork explained: 28 Roe, 410 U.S. at 153. 29 U.S. CONST. amend. XIV. 30 BORK, supra note 1, at 114. 31 at 114. 32 Sherry, supra note 9, at 1216.
2016] A BORKEAN REVIVAL 7 The worrisome aspect of the law just discussed [moralism], therefore, is less the particular decisions than it is the capacity of ideas, or even mere sentiments, that originate outside the Constitution to influence judges, often without their being aware of it, so that those attitudes are suddenly elevate to constitutional doctrine. 33 Bork understood moralism as being outside the Constitution: judge has the 34 original understanding of the Constitution can prevent the osmosis of non- 35 sation that Bork took a moralist position in his disagreement with Roe is not persuasive. If he took that position it would have placed him in a contradiction with his originalist function moral argument must not attempt the creation of new 36 II. CHALLENGING BRUCE ACKERMAN S AMENDMENT PERSPECTIVE Bork challenged renowned legal theorist Bruce Ackerman for his views on the role of politics in the legal landscape. Bork 37 that arguably amended the Constitution outside the Article V standard amending procedure. 38 Bork narrowed his attack on Ackerman to his discussion of the historical New Deal moment in which much of the changes made during that time are still felt in some way today. 39 Ackerman discussed the United States Supreme Court during several attempts of reforms and how the following elections 33 BORK, supra note 1, at 250. 34 at 252. 35 at 250. 36 37 Bruce Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Yale L.J. 1013, 1015 (1984). 38 at 1045. 39 BORK, supra note 1, at 216.
8 ST. JOHN S LAW REVIEW COMMENTARY especially in 1936 could be taken as a sign the people wanted change. 40 More New Deal programs that increased government 41 This process came about democratically beginning the three branches of government to make fundamental changes. 42 The Article V process was entirely avoided. called for an alternative means to Article V to make fundamental changes in constitutional law. He der He does not answer why, if the triumphant spokesmen of the People have enough power to influence all three branches of government, they do not have the power to change the Constitution using the amendment process set forth in Article V. Instead, Ackerman would have Supreme Court Justices watch the political scene closely, and if Congress and the President have, for some length of time, strongly agreed with an unconstitutional policy result, the Supreme Court may legitimately act as if a structural amendment has taken place. 43 Supreme Court can assume an authority to make such structural changes based on political pressures representative of a moment in history. Electoral and legislative victories are not license for judicial activism. Ackerman relies on the judges to make decisions based on generational sentiment where it is the people that have been granted this power through the strictly defined Article V amendment provision and proper channels of legislature. The judiciary is not accountable to the people and this undertaking to expand from interpretation to legislative authority when defining new liberty interests poses a danger to society. III. BORK S NOMINATION-POLITICIZATION IN PRACTICE Bork concluded the book by discussing his highly charged United States Supreme Court confirmation hearings that resulted in a successful movement to deny him a position on the 40 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 17 26 (1998). 41 42 43 BORK, supra note 1, at 215.
2016] A BORKEAN REVIVAL 9 Supreme Court. 44 Some politicians feared his confirmation would alter the balance of the Supreme Court and lead to overturning several major decisions. 45 Among those politicians leading the charge against his appointment were Senator Edward Kennedy and then senator and future Vice President Joe Biden. response set the tone for the movement against his confirmation: en would be forced into back-alley abortions.... [T]he doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are heart of our democracy. 46 This statement reflected how far the nation had fallen in with legal arguments and not meant to cast ills on society as Kennedy had the masses believe. Bork was very much in favor of the states to have the final authority on the abortion issue, and that it was not a question for the Court to address. He explained his response to a sensationalist attack advertisement by The National Abortion Rights Action League that was meant to arouse fear in women League was trying to terrify was that abortion would once more 47 Major political aspirations also were a factor. Most notably was in regards to Joe Biden. Bork recounts a Biden statement in sends up Bork and after our investigation he looks a lot like apart, tha 48 During the time period leading up and through a part of the hearings, Biden was running for President. 49 44 at 268 69. 45 Main decisions in focus included Roe and several of the racial and wom rights cases. 46 133 Cong. Rec. S9188-S9189 (daily ed. July 1, 1987) (statement of Sen. Kennedy). 47 BORK, supra note 1, at 289. 48 Larry Eichel, Judiciary Post, PHILA. INQUIRER, Nov. 16, 1986, at A13. 49 BORK, supra note 1, at 292.
10 ST. JOHN S LAW REVIEW COMMENTARY But seven days after my nomination, Biden was visited by representatives of the Leadership Conference of Civil Rights, the National Association for the Advancement of Colored People Legal Defense and Education Fund, and he at once stated that he would oppose the nomination and would lead the fight in the senate. 50 This situation speaks volumes about the state of politicization in American society and the judicial process. The judicial process should not hinge on special interest groups and personal political ambitions; it should rely on who is most qualified for the position to interpret law. As Bork explained, institutions of the law are free of the increasing politicization of 51 Instead of withdrawing from the nomination and giving the distortion machine what it wanted, Bork fought through the process and was determined to reach the final vote although he would eventually be defeated. 52 This speaks to the character of Robert Bork, one who would not give up even in the face of a distorted propaganda machine. Bork summarized this problem: When the Court is perceived as a political rather than a legal institution, nominees will be treated like political candidates, campaigns will be waged in public, lobbying of senators and the media will be intense, the nominee will be questioned about how he will vote, and he would be pressed to make campaign promises about adhering to or rejecting particular doctrines. 53 CONCLUSION esented a clear originalist approach to constitutional interpretation and addressed major issues that the nation still faces today. There is less room for politicization of law when one returns to the original meaning of the United States Constitution and the United States Supreme Court understands its role as an interpreter of law, not a legislative body. In the modern day, there is a renewed pattern of judicial overreach from the 50 at 284. 51 at 293. 52 at 312. 53 at 348.
2016] A BORKEAN REVIVAL 11 Supreme Court. Politicization has increased while interpretation has decreased. To shift momentum back to interpretation we must return to the Constitution. The time is ripe for a Borkean Revival.